State v. Townes, 55253
| Decision Date | 14 December 1970 |
| Docket Number | No. 55253,No. 2,55253,2 |
| Parties | STATE of Missouri, Respondent, v. Sonny TOWNES, Appellant |
| Court | Missouri Supreme Court |
John C. Danforth, Atty. Gen., Craig A. Van Matre, Asst. Atty. Gen., Jefferson City, for respondent.
John A. Blumenfeld, Blumenfeld, Kalishman, Marx & Tureen, St. Louis, for appellant.
Defendant, prosecuted under the Second Offender Act (§ 556.280, V.A.M.S.), was found guilty by the jury of robbery in the first degree by means of a dangerous and deadly weapon (§ 560.135, V.A.M.S.). The court fixed his punishment at imprisonment for ten years, and he appealed. We affirm.
On August 16, 1968, at approximately 12:30 p.m., a grocery store in St. Louis was entered by two men who proceeded at gunpoint to take cash, checks and food stamps from the cashier, Johnnie Mae Turner, and money and a gun from Willie Macklin, the owner. In addition, money and a wallet were taken from Dan Hornback, a route salesman, who entered the store while the robbery was in progress. The robbers were in the store for five minutes or more and were not masked. When they left the robbery was reported to police officers in the vicinity and they were given descriptions of the two men. Shortly thereafter, two officers in a police car in that neighborhood observed two men who corresponded to the broadcast description of the robbers. The officers gave chase but the two men ran and escaped. However, the officers traced one man to a nearby house where he had broken a basement window and entered the building. The owner of the house admitted the officers and they found defendant hiding underneath a rug behind a chair on the sun porch. In searching him the officers found the wallet taken from Hornback and a brown paper sack which had been in the cash register and on which had been written by Macklin the name and telephone of the cashier, Johnnie Mae Turner. They also found money, food stamps and a check which had been cashed at the grocery store shortly before the robbery and which was taken in the holdup. In addition, a snubnosed .38 caliber revolver was on the chair behind which defendant was hiding. It fit the description of the gun used by the man who held up the cashier and route salesman. The clothes worn by defendant when apprehended corresponded to the clothes worn by said robber.
Defendant was arrested at about 1:05 p.m., approximately half an hour after the robbery. Because he had or feigned some attack or seizure when arrested, he was taken to a hospital and then to the police holdover station in that district. At about 1:45 p.m., Johnnie Mae Turner, Willie Macklin and Dan Hornback were taken by officers to the holdover where they individually viewed the defendant. Each of them identified him as the one who had been in the store and had held Johnnie Mae Turner and Dan Hornback at gunpoint during the robbery.
On appeal, defendant asserts two grounds for relief. In the first place, he contends that the in-court identifications by witnesses Macklin, Turner and Hornback were tainted by reason of the fact that they were permitted to view defendant at the holdover station shortly after his apprehension at a time when he did not have counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States. Defendant relies primarily on United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178, contending that these confrontations by witnesses constituted a critical stage at which defendant had a constitutional right to counsel. Secondly, defendant claims that the court erred in overruling the motion for a mistrial and in refusing to strike the testimony of Macklin and Turner as to the identification of defendant at the holdover for the reason that the per se exclusionary rule of Gilbert is applicable.
The State contends that these issues are not before us because timely objection to admittance of the testimony was not made. The transcript discloses that witnesses Macklin and Turner both testified without objection on April 21, 1969, telling of the holdup and identifying the defendant as the person who had held a gun on Johnnie Mae Turner and Dan Hornback and taken money and other items from them. They also testified as to their confrontation with and identification of the defendant at the holdover shortly after his arrest. When court convened the next morning the defendant filed a motion to strike all the testimony of Macklin and Turner concerning their identification of defendant on the grounds that defendant had been confronted by the witnesses at the holdover when he was without counsel, that the confrontations were suggestive and conducive to mistaken identity, and that as a result the in-court identifications by the witnesses were so tainted as to make them improper and inadmissible. Defendant also moved for a mistrial on the ground that the testimony as to the identification of the defendant at the holdover was so prejudicial that a fair trial was not possible. In spite of the fact that these motions were filed the next day after the testimony...
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